Emma Peterson: Good afternoon and welcome to Facebook live, my name is Emma Peterson
Nicholas Briggs: And my name is Nicholas Briggs.
Emma Peterson: And today we are going be talking about how and when to appeal your VA decision.
A lot of the information we are talking about today is going be available in more detail
on our website at cck-law.com.
And of course, as always if you have questions for Nick and I as we talk about how to appeal
your case today, please feel free to leave it in the comment section and we'll do our very
best to get back to you.
So, diving right in Nick.
Nicholas Briggs: Yep.
Emma Peterson: Why appeal a claim?
Nicholas Briggs: Well, the reason you want to appeal a claim, generally speaking, is
either it denied your claim or it didn't give you the highest rating that you are looking
for.
If you don't appeal that decision it becomes final.
So, whenever VA decided is the end of the matter.
Emma Peterson: Right, and so, we're on we talking about initial claims today so, initial
rating decisions, that you are just getting for the first time from VA so, if you already
have an appeal in the system, particularly if you're in the old system and not the new
Appeal's Modernization system which we have a lot of information about on our website.
Not everything in this conversation will apply to you; but going forward if you're interested
in how to appeal your initial claim, we're going do our best to cover just the broad
strokes on how you can do that and why you'd want to.
So, as Nick said, you'd want to appeal because you were denied whatever you're looking for,
and typically you have a year from the date of that decision to do so.
So, you're going get a decision and you'll also, going get a cover letter that's a notice
of action letter has a date at the top you have one year from the date of that decision
to file your decision.
But I'm sure there are folks after wondering what happens if I miss the deadline.
Nicholas Briggs: Sure, so, at that point, you are going to need to file a new claim,
like Emma mentioned to you, you have that one year to file an appeal.
But one of the benefits to file on the appeal within that one year is one making sure that
you don't need to file a new claim.
And to preserving your effective date from your original claim.
Emma Peterson: And the effective date is important cause that's the date VA is going to pay you
from.
So, if it's a grant of service connection, it's going to be from that effective date
forward, if it's an increase rating same thing but really it boils down to how much
is your retroactive award going to be how much money are you going receive and from
what date is that going to proceed from.
Nicholas Briggs: Exactly. Hey Emma, what is the best time to appeal a decision?
Emma Peterson: So, the best time obviously is before the deadline.
But you certainly want to you know look and see what you need to win your case.
So, if you need to make a link between your current diagnosis and your in-service period
maybe you want to wait until you have something in writing from your doctor describing that nexus
between the two things or if you're trying to prove the severity of condition you
know, the same thing.
Wait until you have some medical evidence or you know, you have a buddy who can write a statement
for you, describing how severe your symptoms are wait until you have that evidence, and then
submit it to VA's so, make it really easy for them to you know, connect the dots.
And just grant you the benefit out of the gate.
Nicholas Briggs: Sure, and the end of the day there are going be times where you don't
necessarily have that evidence right away, and at least for all you're working at the
Regional Office level.
You can certainly file the appeal and depending on which lane you choose in the new Appeals
Modernization system you can submit additional evidence after the appeals filed.
Emma Peterson: Right.
Nicholas Briggs: But you want to make sure that you're being careful about which lane
that you're choosing cause that's going determine what you can actually submit in one.
Emma Peterson: Right, so, this next set in the new system if you want to appeal a decision
and again all these information is on our website, in our blog, and in other Facebook
lives, but in the new system you can pick a new lane after you get a decision but in
the old system, in the Legacy system, you have to file a disagreement and a couple of
other appeals in order to get that, that decision reconsidered.
But if you're getting a rating decision today or you received a rating decision since February
19th, 2019, you're most likely in the new system unless something has gone wrong at
the RO level.
Nicholas Briggs: Exactly, can you have an appeal in both systems at the same time?
Emma Peterson: So, you can but it has to be for different issues.
So, you can't have you know an increased rating for your left knee and the legacy and in the
new AMA system you have to pick one but you can have increased rating for your knee in
the AMA system and maybe you have an old service connection for PTSD claim pending in the legacy
system and you don't want to move it.
You can personally have multiple claims and different places that just cannot be for the
same issue.
Nicholas Briggs: Sure.
Emma Peterson: So, we talked about lanes so, what are your options for appealing a new
rating decision that you get, you know today, in the AMA system.
Nicholas Briggs: Sure, so, there are three different lanes that you can choose from,
you can either choose the Higher-Level Review Lane, the Supplemental Claim Lane or The Board
Lane.
We'll start with the Higher-Level Review Lane first, and then we'll work our way through
to the others.
But what is, what happens when you choose to have your claim reviewed in a higher-level
review lane.
Emma Peterson: So, Higher-Level Review, it's going go to a more senior person at the Regional
Office sort of a super rater, someone that wasn't involved in the initial decision making
process and their going review all the evidence in your claim file de novo, and that means
they're going look at it anew from the beginning and you know with fresh eyes, they are not
bound by anything that initial rating decision found other than favorable findings of fact,
they do have to continue those throughout your appeal period.
They can't, you know, if someone found you have a diagnosis of PTSD someone can't then
say "You don't have it."
But they are going look at it everything fresh.
That really is the best option if you think just the procedure on mistakes been
made.
Maybe a typo's been made, something like that or the evidence is very clear you have everything
you need to win and for whatever reason, it was just overlooked or VA made a typo error
in term of assigning a date or a rating, but that's where you want to, maybe pick the Higher-Level
Review Lane.
Nicholas Briggs: Sure, and one of the things to keep in mind here is that it's really a
focus on all of the evidence that's already of record because once you're in the Higher-Level
Review lane you can't submit new evidence.
Emma Peterson: Right, that's very important.
So, you mentioned that there are three lanes, you've got the Higher-Level Review, what happens
in the Supplemental Claim Lane?
Nicholas Briggs: In the Supplemental Claim Lane, you're providing the VA with new evidence,
new and relevant evidence that supports your claim for service connection, your claim for
increase rating, whatever the issue might be.
So, this is really your one chance to provide the VA with new evidence.
But here, you're going want to make sure, that you're submitting it, as soon as possible
or you're at least identifying the information that VA can go out and get.
Like, records for treatment at VA facilities, any private records, things like that.
Emma Peterson: So, if I submit the form, cause now there's a form for each lane, make sure
you look at that, carefully.
I submit the form for Supplemental Claim Lane and it's within a year from my initial rating
decision.
But then I don't get my supplemental evidence to VA until outside of the year.
Am I going have met the appeal period?
Nicholas Briggs: As long you identified it, the fact that they didn't receive it before
the expiration of the year is fine.
It's identifying the new and relevant evidence, VA has the duty to assist at that point, to
go and get the evidence.
Emma Peterson: But if I didn't submit the form and don't say anything.
That's not going be considered a supplemental claim, right?
It's kind of tricky that way?
Nicholas Briggs: Yeah, so, in that case, you'd really want to make sure that you're getting
it as so, on as possible because if you go outside that year, it could go either way
as to what VA will do.
Emma Peterson: So, this is really the best lane to pick if, like Nick said, if you have
additional evidence to add you can take a look at your initial rating decision figure
out what's missing.
VA should tell, you know what is the missing link, you don't have a diagnosis, you don't
have a nexus opinion from a doctor, we can't find any service record that confirms this.
It gives you an opportunity to go out and find that information.
And rather than having to go through a lengthy appeal process up to the Board you can
hopefully just fix it at the ground level at the Regional Office.
Nicholas Briggs: And again, this is the one area of the new system where the duty to assist
applies, so, if you do provide this evidence either showing that you were injured in service
or showing that you have a current diagnosis, that's the time when the VA is going go out
and get a VA medical opinion on their own, after sending questions as to whether or not
service connection for your conditions warranted.
And in the last lane that we wanted to talk about is taking the case to the Board of Veterans'
Appeals, so, how is a notice to disagreement in the new system different from a notice of
disagreement in the old system.
Emma Peterson: Sure, so, in the old system.
You'd file a notice of disagreement and you're identifying what you disagree with.
You'd wait a year to ten for VA to issue a Statement of the Case, which really would
just nine times out of ten reiterate, in sort of short form.
The reasons why you were denied by the Regional Office level.
You then have to file 60 days a VA form 9 saying "no, no I really mean it, I'd like
to appeal" and if you missed that deadline your appeal will be over but let's say you
file it.
And then you have to wait a series of months to years for the VA to certify your case to the
Board.
And then eventually, you know again, 5 or 6 years later you might end with the Board
decision, from a Board member at the Board of Veterans' Appeals.
So, that was the old appeal system.
Now, with the notice disagreement to the Board, you skip those middle steps.
You skip the Statement of the Case; you skip the VA 9.
It's just an appeal directly to the Board, saying I really mean this, I want someone
at the Board to look at my case.
And you can pick from three different dockets at the Board.
Nicholas Briggs: Yep, exactly, so, the three different dockets that you can choose from
are Direct Review, which is review of the evidence that was of record at the time of
the previous decision issued by the Regional Office, and you can also, choose the Evidence
Docket and that allows you 90 days in which to submit additional evidence following
your election of the evidence lane choice ,and then finally there's the Hearing Docket
which would entitle you to attend a hearing before either in Washington DC or by video
conference, in which your hearing officer will go through your case for you.
And you can answer any questions related to your appeal.
Emma Peterson: Now, there are certainly pros and cons to picking each docket.
One of which has to do with the time in which you are going be addressed and we have information
about that up on our website.
But the Direct Review docket is sort of like the Higher-Level Review lane at the RO except
at the Board.
So, if you have a case where you know, there's a question that's legally complex, maybe it's
something more unusual that raters don't see every day.
You might want to pick that docket, but that's if you have all the evidence you need in the
file already.
For the Evidence Docket, it's kind of like Supplemental Claim lane, you get to add some evidence
into the record whatever is missing but again the same thing, you want to get out
of the Regional Office, you want to go to the Board, you want to have a Board Judge
address your case, have one of the lawyers at VA review the case and issue a decision,
and then finally Hearing Docket in other certain cases in which hearing can be very beneficial
and if you want to speak to a Board member, you absolutely have a right to do that.
And you can submit some evidence at the Hearing Docket, so, it gets a little tricky,
but at the time of your hearing, when you physically have the hearing, you can submit
new evidence and then, I think you'll have 90 days after your hearing to submit evidence
and then window closes again.
So, it's a little confusing, but...
Nicholas Briggs: And again, at the end of the day, you don't necessarily know when the
hearing is going be scheduled.
Emma Peterson: Right.
Nicholas Briggs: We are talking on the order of years before it could be the case that
your hearing scheduled, so, at that point, it might be hard to know what evidence, you
need to submit to identify evidence based off of the period on appeal.
Depending on the situation you know, save yourself some time and don't choose the hearing
unless there is a very good reason to do that.
Emma Peterson: Right, right.
I think one good point to know overall is that, as we talk about the Supplemental Claim
Lane, it's the lane in which we have the duty to assist.
The Board doesn't have the duty to assist anymore, they used to in the legacy system.
but you can't rely on the Board to look and say "oh you know what, the span and passage
of time the condition is worst, let's get a new exam".
They're not going do that anymore.
The only time in which the Board would say, something needs to go back to the Regional
Office for a duty to assist error is if it's already happened.
So, the initial exam, VA got for you.
You identified the service record and VA never went and got them, something like that.
Something it's already happened in the past.
But something that's happened, since then along the way to the Board is not going be
something the Boards going help you with, unfortunately.
Nicholas Briggs: Exactly, so, all they can do in that situation is at least identify
the duty to assist error that occurred in the Supplemental Claim Lane.
But from there it effectively requires a remand back to the Supplemental Claim Lane for the
Regional Office to correct that duty to assist error to get that adequate VA examination
whatever the case may be, which makes you start the process over again.
So, ultimately, you are able to maintain your effective date when that happens, but you
want to make sure that you are staying on top of it, especially as your appeal works
its way through.
Emma Peterson: What happens if I choose the wrong lane?
I pick Higher-Level Review but then I realized you know what I've reconnected with my friend
from service,
he can verify everything I'm saying.
Happened in service, happened and I want him to write me a letter.
What can I do to then?
Nicholas Briggs: You have within the initial year, of the initial rating decision to change
your selection, if you initially opt into the higher-level review lane as long as that
decision doesn't come in you can change your choice.
But at the end of the day, there's no harm in perceiving a denial in the Higher- Level
Review lane and then filing a new supplemental claim within a year of that decision.
Submitting new evidence that you mentioned.
Emma Peterson: Now, some lanes are going to be faster than others.
And some of it is pretty intuitive, so, for example.
Direct-review of issues, whether at the Regional Office or at the Board, will probably be faster
than situations in which evidence needs to be reviewed, but certainly, it's an important
issue to discuss with either; your attorney, your accredited agent, your VSL, our colleagues at DAV
to help you figure out what lane to pick.
What's going be the fastest and best lane for you.
Cause there is sort of two things to consider how fast is VA can decide my appeal and what
do they need to decide my appeal.
So, it's going take a little bit longer but it's going result in a favorable decision,
you might going pick that lane, but again it's tricky, it's untested, it's new.
So, definitely reach out to someone to figure out which one of these lanes to pick.
Nicholas Briggs: Absolutely.
Emma Peterson: Now, what if the decision you appeal to the Board is unfavorable?
What next?
Nicholas Briggs: So, that point, you have two options; you could file a new Supplemental
Claim in which you provide new and relevant evidence.
or if it's a legal error, you know that is Regional, the Board is clearly either ignoring
the law or not applying it correctly.
You still have the option to appeal the case back to the Court of Appeals for Veterans
Claims.
Emma Peterson: Okay, the CAVC just briefly is the federal court in DC they're outside
of the VA system, they hear exclusively veterans disability cases from VA and a couple of other
things but again, only VA cases, but it's not part of VA.
They are, you know.
Real federal judges and this is all they consider day in and day out, 365 days a year.
But, one of the interesting features and again untested points so, far, that I know of is
that, under the new system, you can actually file a Supplemental Claim off of a unfavorable
court decisions, used to be that was either the end or you'd have to appeal to the federal
circuit and maybe the Supreme Court and that's all very difficult to do.
Now, if the court issues the decision and says " Nope the Board did everything right
and here is why" you'd have an opportunity to file a Supplemental Claim within a year
of the court decision may be fixing that mistake adding more evidence to counteract whatever
it is the court found.
Nicholas Briggs: It's also, important to keep that in mind that the appeal time frame for
taking the case to court are a bit different under the new system the rule is pretty exclusively
one year after the date of the decision, but in the case of negative Board denial you only
have a hundred days to file or a hundred twenty days to file the appeal to court.
So, keep that in mind ultimately if you are unfortunately, may get pass that one hundred
twenty-days and you can't show a good cause for why you missed the appeal deadline it's not
the end of your case, you do still have the opportunity to file the Supplemental Claim.
Emma Peterson: Right, absolutely.
Nick, do you have any tips or things to remember for veterans who are about to submit an appeal?
Nicholas Briggs: Just know your deadline, make sure that you are within that one year,
know which lane you are going into and why.
If you don't know which lane to go to, seek representation, look, go to your representative
if you have one, cause there going be all to walk you through the system as it develops.
Emma Peterson: Okay, so, do we have a question from Sherwin about forms, my favorite!
Alright, so, if you choose the Appeal to the Board lane, then a VA Form 10182 must be used?
and sent to the BVA in DC?
I don't know the numbers at the top of my head yet, I will, but possibly?
Nicholas Briggs: Sure, so, at the end of the day, they do have a new NOD form we are not
sure of the exact number that appears to be the correct number.
Emma Peterson: We are getting a thumbs up that it's the number.
Nicholas Briggs: But unlike the Legacy system, where you would file the Notice of Disagreement
with the Regional Office, in the new system, yes you need to directly file that Notice of Disagreement with
the Board because the Regional Office usually isn't going to forward it to the Board for
you.
Emma Peterson: Right so, NOD's no longer go to the RO they go to the Board of Veterans'
Appeals in Washington DC, and hopefully those instructions are somewhat clear on the form
itself.
If there are any other questions, we are happy to answer them, other than that, thanks for joining
us with today's brief but hopefully informative CCK live on how and when to appeal your decision
I am Emma Peterson.
Nicholas Briggs: And I am Nicholas Briggs.
Emma Peterson: And thanks for joining us.